Police and regulatory general clause

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The general clause under police law or police and regulatory law is a catch-all clause in German police law , which enables measures to be taken to avert danger where no special intervention authorizations (e.g. standard measures such as eviction , detention , identification ) exist.

Terminology and history

Because in Germany the legislative competence for hazard prevention law under Article 70 of the Basic Law rests with the federal states, general police clauses can be found primarily in state law. Because of the different definition of the police , different names are used: In some countries, following an older terminology, the entire security system is referred to as " police " ( police enforcement service and police authorities ), in others it is only understood as the uniformed police. According to this, state law speaks partly of the police general clause, partly of the police and regulatory law general clause, without any factual differences being associated with it.

The general clauses can be found with slightly different wording in the police and security and regulatory laws of the federal states (e.g. § 1, 3 PolG BW, § 8 PolG NRW, § 11 NdsSOG, § 9 Paragraph 1 Sentence 1 PolG RLP, § 14 OBG NRW, § 14 BPolG). They go back to § 14 of the Prussian Police Administration Act of 1931:

The police authorities must, within the framework of the applicable laws, take the necessary measures according to their dutiful discretion in order to ward off dangers from the general public or individuals that threaten public safety or order .

This standard in turn is based on Paragraph 10 II 17 ALR in the restriction to the prevention of danger, which he received through the landmark Kreuzberg judgment of the Prussian Higher Administrative Court from 1882. According to Paragraph 10 II 17 ALR, the maintenance of public tranquility was one of the police duties, which is no longer explicitly mentioned today.

The general authorization for the purpose of averting danger not only shaped the general authority of the police in Prussia, but also throughout northern Germany. In contrast, in southern Germany (Bavaria, Baden and Württemberg) police law was characterized by a close connection with criminal law. Police penal codes have been authoritative here since the second half of the 19th century, according to which the police could only act on the basis of special delegations (so-called "southern German system").

Under National Socialism, the general police clause (Section 14 of the Prussian Police Administration Act) was often ideologically reinterpreted through doctrine and jurisprudence, so that the executive scope of action of the security authorities extended to a wide range of social activities. In particular, the indefinite protection of “ public order ” was misused as a break-in point for anti-liberal objectives. The result was a "verpolizeilichung" of more and more areas of life at the expense of the freedom of the individual and legal protection . For the state security sector ( political police ), however, it was not the general clause, but only the emergency ordinance of February 28, 1933 that was decisive.

After the Second World War, the rule of law tradition before 1933 was resumed in West Germany and West Berlin. The state police laws were conspicuously based on the Prussian Police Administration Act of 1931, whose “system of the general clause” was gradually being adopted in the southern German states. In the general police law of the GDR, a general clause - albeit a modified one - was adopted which, in addition to preventing danger, explicitly stipulated the “protection of the socialist state and society” (Section 1 of the Law on the Duties and Powers of the German People's Police of 1968 ). This gave the People's Police extensive scope for intervention . Only after the collapse of the SED regime could a general clause based on the rule of law in the police laws of the new federal states come into effect.

content

A typical general police clause can be found in §§ 1, 3 PolG Baden-Württemberg :

§ 1 General
(1) The police have the task of warding off dangers from the individual and the community that threaten public security or order, and to eliminate disruptions to public security or order insofar as it is necessary in the public interest. In particular, it has to guarantee the constitutional order and the unhindered exercise of civil rights. [...]
§ 3 Police Measures
The police must take those measures within the limits set by the law in order to carry out their tasks which they consider necessary in their dutiful discretion.

The separation of task assignment (§ 1 PolG BW) and authorization norm (§ 3 PolG BW) becomes clear here. First, the police are assigned the task of averting danger and troubleshooting. Danger is any situation which, if the objectively expected events proceed unhindered, leads to a violation of the protected assets with a sufficient degree of probability. The objects of protection are public security (inviolability of the legal system , protection of state institutions and events and the rights of third parties) and public order .

If it is necessary to encroach on fundamental rights in order to fulfill this task , this assignment of tasks is not sufficient. Rather, according to the principle of the reservation of the law, a statutory authorization to intervene is required . This is § 3 PolG BW. According to this, the police have to act according to their dutiful discretion when averting danger (principle of opportunity ) - in contrast to criminal prosecution (see principle of legality ). The discretion is determined in particular by the prohibition of excess and can be checked by a court.

The general clause in the security system

If there is a special authority to intervene (e.g. under the Assembly Act ), recourse to the general clause is prohibited according to the principle of lex specialis derogat legi generali , as far as the scope of the special authority extends. Outside its area of ​​application, the special authorization should also be able to develop a blocking effect. It is controversial under which conditions this can be the case. According to one opinion it depends on the intensity of the intervention, according to another opinion on the typicality or atypicality of the measure.

More specific norms are also the general clauses of the special police law, such as those of the building regulations law (“building police law”). Only if all of these powers of intervention are not relevant does the general police clause apply.

meaning

The legal binding of the police force was an important step towards the rule of law , because the measures to avert danger sometimes place a considerable burden on the troublemaker . It would be desirable to describe the requirements as precisely as possible. This has happened for typical standard measures. However, the legislature cannot foresee all the constellations that arise and must be mastered in order to effectively avert danger. The general clause represents a compromise for this.

Until the 1980s z. B. a large part of the data collection, data storage and data comparison on the basis of the general clauses of police and regulatory law. With the decision of the Federal Constitutional Court on the census , however, special legal norms were demanded and have since been issued in all countries. In any case, recourse to the general clause is now blocked.

For this reason and because the regulatory density of the powers to intervene is very deep in Germany, an appeal to the general clauses of the police and regulatory law is an exception. In the everyday life of the police and regulatory authorities, the measures based on the general clause remain varied, especially because they are repeated again and again new danger situations arise. In the literature, measures that are based on the general clauses of police and regulatory law are mentioned as:

  • Shutting down nuclear power plants when a terrorist attack threatens
  • Ordering a football match to prevent further deadly excesses (as happened in 1985 in the Heysel Stadium in Brussels)
  • Towing of obstructing vehicles
  • Action against drug and alcohol abuse, homelessness, aggressive begging and provocative nudity in public spaces
  • Reporting requirements for violent extremists and football fans
  • Ban on commercial euthanasia
  • Letters of threats or addresses of threats

To enforce such measures, the police are entitled to exercise direct coercion . In accordance with the nature of the general clause, it must remain open which action , tolerance or omission can be required of the person concerned. This is intended to ensure that the state ensures that the police (or the other regulatory authorities such as health authorities, building supervision, youth welfare offices) can react adequately to new dangerous situations that require completely new intervention.

The Federal Constitutional Court ruled that

“[T] he use of the general police clause [...] under this constitutional aspect [the requirement of certainty ] [is] harmless, because over decades of development by jurisprudence and teaching it has been sufficiently precise in terms of content, purpose and extent, its meaning clarified and in legal terms Linguistic usage is solidified. "

- BVerfGE 54, 143 (144 f.)

Switzerland

The general police clause is regulated in Swiss law in Article 36 Paragraph 1 of the Federal Constitution . The application of the general police clause requires the following conditions:

  • There must be no other legal basis (principle of subsidiarity ).
  • There must be an immediate and serious danger to life, limb, health or property.
  • The danger must not be averted in any other way.
  • Measures may only be based on this as long as this is absolutely necessary to avert the danger.
  • The danger must not be foreseeable, since the legislature would otherwise be forced to make a corresponding regulation if it wants to counter this danger.

In a new, not undisputed judgment (preliminary publication on July 15, 2011), the Swiss Federal Supreme Court expanded the list of criteria to include the term "macroeconomic balance". Thus a measure of banking supervision is FINMA into account that the US tax authorities and supported admitted of it to print on the agreement of the Swiss government, contrary to the objective of banking secrecy data of a large number of potential American tax evaders with accounts / deposits in Swiss bank UBS to to submit to the US authorities. Contrary to the previous instance, the Federal Supreme Court sees the applicability of the clause due to the great economic importance of UBS for Switzerland, in terms of the " too big to fail " problem. According to the argumentation, UBS would have threatened bankruptcy in the event of a refusal to extradite the US, which would have been equivalent to a threat to the Swiss economy due to the importance of UBS.

Individual evidence

  1. ^ Franz-Ludwig Knemeyer, Police and Ordnungsrecht, 8th edition Munich 2000, § 1 Rn. 5–6 with further information.
  2. ↑ Andreas Schwegel, 70 years of the Prussian Police Administration Act - comments on the genesis and history of the impact of the general clause § 14 PVG with special consideration of the Nazi era, in: Archive for Police History 2001, pp. 79-89.
  3. ↑ Volkmar Götz : The concern for public safety and order. in: Jeserich / Pohl / von Unruh (ed.): German administrative history. Vol. 5. Stuttgart 1987, pp. 447-450.
  4. ^ Franz-Ludwig Knemeyer, Police and Ordnungsrecht, 8th edition Munich 2000, § 1 Rn. 16-17.
  5. ↑ Bodo Pieroth / Bernhard Schlink / Michael Kniesel, Polizei- und Ordnungsrecht, 3rd edition 2005, CH Beck, Munich, § 7 Rn. 16–21 with more detailed explanations, ISBN 3-406-53891-6
  6. ↑ See Bodo Pieroth / Bernhard Schlink / Michael Kniesel: Police and regulatory law . 3. Edition. CH Beck, Munich 2005, § 7 Rn. 13, ISBN 3-406-53891-6 .
  7. ↑ BVerfGE 54, 143 (144 f.) , May 23, 1980.
  8. ↑ Berner Zeitung of July 16, 2011
  9. ^ Echo der Zeit from Schweizer Radio DRS from July 15, 2011

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